No. 96-1242
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
SCOTT ARMSTRONG, ET AL., PETITIONER
v.
EXECUTIVE OFFICE OF THE PRESIDENT, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
WALTER DELLINGER
Acting Solicitor General
FRANK W. HUNGER
Assistant Attorney General
LEONARD SCHAITMAN
FREDDI LIPSTEIN
MATTHEW M. COLLETTE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
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QUESTION PRESENTED
Whether the National Security Council is an
"agency" within the meaning of the Freedom of Infor-
mation Act and the Federal Records Act.
(I)
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TABLE OF CONTENTS
Page
Opinions below . . . . 1
Jurisdiction . . . . 1
Statement . . . . 2
Argument . . . . 15
Conclusion . . . . 29
TABLE OF AUTHORITIES
American Friends Serv, Comm. v. Webster,
720 F.2d 29(D.C. Cir. 1983) . . . . 27
Armstrong v. Bush:
721 F. Supp.343 (D.D.C. 1989), aff'd in part,
rev'd in part, 924 F.2d 282 (D. C. Cir. 1991) . . . . 9, 10
924 F.2d 282(D.C. Cir. 1991) . . . . 7, 10, 27
Amstrong v. Executive Office of the President
810 F. Supp. 335 (D. D.C.), aff'd, 1 F.3d 1274
(D. C. Ck. 1993) . . . . 11
1 F.3d 1274 (D.C. Cir. 1993) . . . . 3, 4, 5, 9, 10, 11, 12, 25
Bennett v. Spear, No. 95-813 (Mar. 19, 1997) . . . . 26
Block v. Community Nutrition Inst., 467 U.S.
340 (1984) . . . . 27, 28
Franklin v. Massachusetts, 505 U.S. 788 (1992) . . . . 10, 20
Kissinger v. Reports Committee for Freedom
of the Press, 445 U.S. 136 (1980) . . . . 3, 17, 20,
21, 24, 27, 28
Lujan v. National Wildlife Fed'n, 497 U.S. 871
(1990) . . . . 26
Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993) . . . . 19-20
National Security Archive v. Archivist, 909 F.2d
541 (D.C. Cir. 1990) . . . . 20
Pacific Legal Found. v. Council on Envtl.
Quality, 636 F.2d 1259 (D.C. Cir. 1980) . . . . 20
Rushforth v. Council of Economic Advisers,
762 F.2d 1038 (D.C. Cir. 1985) . . . . 20, 22
(III)
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IV
Cases-Continued: Page
Sierra Club v. Andrew, 581 F.2d 895 (D.C. Cir.
1978), rev'd, 442 U.S. 347 (1979) . . . . 20
Soucie v. David, 448 F.2d 1067 (D.C. Cir.
1971) . . . . 3, 16, 20
Sweetland v. Walters, 60 F.3d 852 (.D.C. Cir.
1995) . . . . 19
United States Dep't of Justice v. Tax Analysts,
492 U.S. 136 (1989) . . . . 24
Statutes and regulation
Act of NOV. 21, 1974, Pub. L. No. 93-502, 3,
88 Stat. 1564 . . . . 3
Administrative Procedure Act:
5 U.S.C. 551(1) . . . . 3
5 U.S.C. 701 et seq . . . . 10
5 U.S.C. 701(a)(1) . . . . 27
Federal Records Act:
44 U.S.C. Ch. 21 . . . . 2
44 U.S.C. 2115(b) . . . . 28
44 U.S.C. Ch. 29 . . . . 2
44 U.S.C. 2901(13) . . . . 2
44 U.S.C. 2901(14) . . . . 2
44 U.S.C. 2902(2) . . . . 4
44 U.S.C. 2902(3) . . . . 4
44 U.S.C. 2902(4) . . . . 4
44 U.S.C. 2902(5) . . . . 4
44 U.S.C. 2902(6) . . . . 4
44 U.S.C. 2904 . . . . 4
44 U.S.C. 2904(a) . . . . 5
44 U.S.C. 2904(c)(1) . . . . 5
44 U.S.C. 2905(a) . . . . 27
44 U.S.C. Ch. 31 . . . . 2
44 U.S.C. 3101 . . . . 4, 27
44 U.S.C. 3102 . . . . 4
44 U.S.C. 3106 . . . . 27
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V
Statutes and regulations-Continued:
44 U.S.C. Ch. 33 . . . . 2
44 U.SC. 3303 . . . . 5
44 U.S.C. 3303a . . . . 5
44 U.S.C 3314 . . . . 5
Freedom of Information Act, 5 U.S.C. 552 . . . . 24
5 U.S.C. 552(a)(4)(B) . . . . 24
5 U.S.C. 552(f) . . . . 3
National Security Act of 1947, ch. 343, 101,
61 Stat. 496 . . . . 7
50 U. S. C.402 . . . . 7, 22
50 U.S.C. 402(a) . . . . 8, 22
50 U.S.C 402(a)(l)-(4) . . . . 8
50 U. S. C 402(a)(7) . . . . 8
50 U.S.C. 402(h) . . . . 9, 22
50 U. S. C.402(C) . . . . 8
50 U.S. C .402(d) . . . . 22
Presidential Records Act of 1978, 44 U.S.C. 2201
et seq . . . .
44 U.S.C. 2201(2) . . . . 2, 3, 17, 25
44 U.S.C. 2201(2)(B) . . . . 2, 3
44 U.S.C. 2203(a) . . . . 5
44 U.S.C. 2203(c) . . . . 5
44 U.S.C. 2203(d) . . . . 5
44 U.S.C. 2203(f) . . . . 6
44 U.S.C. 2203(f)(l) . . . . 6
44 U.S.C. 2204 . . . . 6
44 U.S.C. 2204(a) . . . . 6
44 U.S.C. 2204(h)(2) . . . . 6
44 U.S.C. 2204(h)(3) . . . . 6
28 U.S.C. 1292(h) . . . . 10
40 U.S.C. 472(a) . . . . 2
5 C.F.R. 2502.3(a) . . . . 18
36 C.F.R. 1234.24 . . . . 26
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VI
Miscellaneous:
Exec. Order No. 12,122,44 Fed. Reg. 11,197
(1979) . . . . 18
60 Fed. Reg. (1995):
p. 44,634 . . . . 26
p. 44,461 . . . . 26
H.R. Conf. Rep. No. 1380, 93d Cong., 2d Sess.
(1974) . . . . 3, 17
H.R. Conf. Rep. No. 1124, 98th Cong., 2d Sess.
(1984) . . . . 28
H.R. Rep. No. 876, 93d Cong., 2d Sess. (1974) . . . . 22
H.R. Rep. No. 1487, 95th Cong., 2d Sess., Pt. I
(1978) . . . . 5
Memorandum for Alan J. Kreczko, Special Assistant
to the President and Legal Adviser, National Se-
curity Council, Re: Status of NSC as an "Agency"
under FOIA (OLC Sept. 20, 1993) . . . . 12
Memorandum of John M. Harmon, Assistant
General, Office of Legal Counsel, to Robert J.
Lipshutz, Counsel for the President, 2 Op. O.L.C.
197 (1978) . . . . 12
Memorandum of Roger C. Cramton, Assistant
Attorney General, Office of Legal Counsel, to
John W. Dean, III, Counsel to the President
(OLC Jan. 30, 1973) . . . . 13
S. Rep. No. 239, 80th Cong., 1st Sess. (1947) . . . . 22
Rep. No. 2140, 81st Cong., 2d Sess. (1950) . . . . 26-27
S. Rep. No. 1326, 94th Cong., 2d Sess. (1976) . . . . 4, 26
2 Harry S. Truman, Memoirs: Years of Trial and
Hope (1956) . . . . 23
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In the Supreme Court of the United States
OCTOBER TERM, 1996
No. 96-1242
SCOTT ARMSTRONG, ET AL., PETITIONERS
v.
EXECUTIVE OFFICE OF THE PRESIDENT, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. A1-
A51) is reported at 90 F.3d 553. The opinion and order
of the district court (Pet. App. A52-A88) are reported
at 877 F. Supp. 690. Earlier opinions of the court of
appeals in this ease are reported at 1 F.3d 1274 and 924
F.2d 282. Earlier opinions of the district court are
reported at 810 F. Supp. 335 and 721 F. Supp. 343.
JURISDICTION
The judgment of the court of appeals was entered on
August 2, 1996. A petition for rehearing was denied
on November 6, 1996. Pet. App. A106-A1O7. The peti-
tion for a writ of certiorari was filed on February 4,
1997. The jurisdiction of this Court `is invoked under
(1)
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2
28 U.S.C. 1257, but the proper basis is 28 U.S.C.
1254(1).
STATEMENT
1. The Records Statutes. a. Official government
records are subject to one of two records schemes:
the Federal Records Act (FRA), 44 U.S.C. Chs. 21,
29, 31, and 33 or the Presidential Records Act of
1978 (PRA), 44 U.S.C. 2201 et seq. Records of "Fed-
eral agencies"'-often referred to as "federal rec-
ords"-are governed by the FRA. The term "Federal
agency" includes "executive agenc[ies]," which in
turn include "any executive department or inde-
pendent establishrnent in the executive branch of
the Government." 40 U.S.C. 472(a); see 44 U.S.C.
2901(13) and (14). Records of federal "agencies" are
also subject to the disclosure requirements of the
Freedom of Information Act (FOIA), 5 U.S.C. 552.
"Presidential records" are governed by the PRA.
The PRA defines "Presidential records" to include
documentary materials, or any reasonably segre-
gable portion thereof, created or received by the
President, his immediate staff, or a unit or individ-
ual of the Executive Office of the President whose
function is to advise and assist the President, in
the course of conducting activities which relate to
or have an effect upon the carrying out of the con-
stitutional, statutory, or other official or ceremo-
nial duties of the President.
44 U.S.C. 2201(2). The term "Presidential records"
does not include "official records of an agency." 44
U.S.C. 2201(2)(B). This Court has made clear that the
term " agency;" as it appears in the relevant statutes,
does not include "the President's immediate personal
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3
staff or units in the Executive Office [of the Presi-
dent (EOP)] whose sole function is to advise and
assist the President." Kissinger v. Reporters Com-
mittee for Freedom of the Press, 445 U.S. 136, 156
(1980) (quoting H.R. Conf. Rep. No. 1380, 93d Cong., 2d
Sess. 15 (1974)). 1
Thus, "[t]he FRA defines a class of materials that
are federal records subject to its provisions, and the
PRA describes another, mutually exclusive set of
materials." Armstrong v. Executive Office of the
___________________(footnotes)
1 The PRA incorporates the FOIA's definition of "agency"
contained in 5 U.S.C. 552(f). See 44 U.S.C. 2201(2)(B). In
Soucie v. David, 448 F.2d 1067, 1073 (D.C. Cir. 1971), the court
of appeals construed the Administrative Procedure Act (APA)
definition of "agency" (see 5 U.S.C. 551(1)) to include `(any
administrative unit with substantial independent authority in
the exercise of specific functions." The court indicated, how-
ever, that, "[i]f [an entity's] sole function were to advise and
assist the President, that might be taken as an indication that
the [entity] is part. of the President's staff and not a separate
agency." 448 F.2d at 1075.
In 1974, Congress amended the FOIA definition so that it
expressly covered any "establishment" in "the Executive
Office of the President." Act of Nov. 21, 1974, Pub. L. No.
93-502, 3, 88 Stat. 1564 (codified at 5 U.S.C. 552(f)). The
Conference Report accompanying the 1974 amendments en-
dorsed the Soucie analysis and stated that "[t]he term
[Executive Office of the President] is not to be interpreted as
including the President's immediate personal staff or units in
the Executive Office whose sole function is to advise and assist
the President." H.R. Conf. Rep. No. 1380, 93d Cong., 2d Sess.
15 (1974). This Court in Kissinger adopted that approach. 445
U.S. at 156. The Souci standard has been incorporated into
the PRA, which defines "Presidential records" to include
materials "created or received by * * * a unit or individual of
the Executive Office of the President whose function is to
advise and assist the President." 44 U.S.C. 2201(2).
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4
President, 1 F.3d 1274, 1293 (D.C. Cir. 1993) (Arm-
strong II). The determination of which statutory
scheme applies to a given EOP component turns on
whether that entity is an "agency" within the mean-
ing of the relevant statutes. The answer to that
question depends, in turn, on whether the entity
performs functions other than advising and assisting
the President.
b. The FRA provides for the creation, preserva-
tion, and disposition of federal records under guidance
provided by the Archivist of the United States.
44 U.S.C. 2904. The FRA places "particular emphasis
on the prevention of unnecessary Federal paper-
work." 44 U.S.C. 2902(6). The Act is intended to
"[c]ontrol * * * the quantity and quality of records
produced by the Federal Government," in order "to
prevent the creation of unnecessary records" and to
"[s]implif[y] * * * [the] processes of records
creation." 44 U.S.C. 2902 (2), (3) and (4); see S. Rep.
No. 1326, 94th Cong., 2d Sess. 2 (1976). The FRA also
strives for accurate and complete documentation of
the policies and transactions of the government, and
the "[j]udicious preservation and disposal of records."
44 U.S.C. 2902(5).
"To achieve those ends, the FRA burdens the heads
of federal agencies with several obligations." Arm-
strong II, 1 F.3d at 1278. The agency head is required
to "make and preserve records containing adequate
and proper documentation of the organization, func-
tions, policies, decisions, procedures, and essential
transactions of the agency." 44 U.S.C. 3101. He must
"establish and maintain an active, continuing pro-
gram for the economical and efficient management
of the records of the agency," and the program must
satisfy specfied requirements. 44 U.S.C. 3102. The
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5
agency head must obtain the approval of the Archivist
before disposing of records. 44 U.S.C. 3303, 3303a; see
44 U.S.C. 3314 ("'records of the United States Govern-
ment may not be alienated or destroyed except under
this chapter"). The Archivist is required, in turn, to
"provide guidance and assistance to Federal agencies
with respect to ensuring adequate and proper docu-
mentation of the policies and transactions of the
Federal Government and ensuring proper records dis-
posal," 44 U.S.C. 2904(a); to "promulgate standards,
procedures, and guidelines with respect to records
management" 44 U.S.C. 2904(c)(I); and to perform
other duties with respect to the implementation and
enforcement of the FRA. See Armstrong II, 1 F.3d at
1279.
c. The PRA, effective in 1981, ended the tradition
of private ownership of official presidential papers.
The PRA requires the President to determine what
materials qualify as "Presidential records" and to im-
plement records management controls to assure the
adequate documentation of the performance of his
duties. 44 U.S.C. 2203(a); see also H.R. Rep. No. 1487,
95th Cong., 2d Sess., Pt. I, at 4 (1978). To avoid exces-
sive retention of documents, the President may dis-
pose of presidential records in his possession that
no longer have "administrative, historical, informa-
tional, or evidentiary value: after obtaining the Ar-
chivist's views concerning the proposed disposal. 44
U.S.C. 2203(c) and (d). If the Archivist believes that
the proposed destruction raises issues of interest to
Congress or the public, the President must notify the
appropriate committees of Congress of the intended
destruction and provide copies of the disposition
schedule. Ibid.
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6
At the end of the President's service in office, the
Archivist assumes custody and control of his presi-
dential records and subsequently determines disposi-
tion of and public access to the records pursuant to
the PRA, in conjunction with the FOIA. 44 U.S.C.
2203(f), 2204. Access to presidential records is gener-
ally delayed until the Archivist has processed them
or five years after the end of the President's service
in office, whichever is earlier. 44 U.S.C. 2203(f)(l),
2204(b)(2). The PRA permits the President to re-
strict access to certain categories of records for up to
12 years. 44 U.S.C. 2204(a). The Archivist's deter-
mination whether materials fall within those restric-
tions is subject to judicial review only upon an ac-
tion initiated by the former President, if he believes
that the determination violates any of his rights or
privileges. 44 U.S.C. 2204(b)(3).
As the D.C. Circuit explained in a prior appeal in
this case:
The statutory scheme and legislative history of
the PRA reflect a congressional intent to balance
two competing goals. First, Congress sought to
establish the public ownership of presidential
records and ensure the preservation of presiden-
tial records for public access after the termination
of a President's term in office. But Congress was
also keenly aware of the separation of powers con-
cerns that were implicated by legislation regulat-
ing the conduct of the President's daily opera-
tions. Congress therefore sought assiduously to
minimize outside interference with the day-to-day
operations of the President and his closest advi-
sors and to ensure executive branch control over
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7
presidential records during the President's term
in office.
Congress balanced these competing goals by
requiring the President to maintain records docu-
menting the policies, activities, and decisions of
his administration, but leaving the implementation
of such a requirement in the President's hands.
For example, although the FRA authorizes the
Archivist to promulgate guidelines and regula-
tions to assist the agencies in the development of a
records management system, the PRA lacks an
analogous provision. The Archivist also lacks the
authority under the PRA to inspect the Presi-
dent's records or survey the President's records
management practices. Finally, the PRA does not
require the Archivist to provide Congress with
the annual reports on the President's record-
keeping policies and practices that he must submit
for agencies.
Moreover, the PRA accords the President virtu-
ally complete control over his records during his
term of office. Although the President must no-
tify the Archivist before disposing of records and
the Archivist may inform Congress of the Presi-
dent's desire to dispose of the records, neither the
Archivist nor the Congress has the authority to
veto the President's disposal decision.
___________________(footnotes)
Armstrong v. Bush, 924 F.2d 282,290 (D.C. Cir. 1991)
(Armstrong I) (citations omitted).
2. The National Security Council. The National
Security Council (NSC or Council) was created by
the National Security Act of 1947, ch. 343, 101, 61
Stat. 496 (codified at 50 U.S.C. 402). By statute, the
Council includes the President, the Vice-President,
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8
and the Secretaries of State and Defense. See
50 U.S.C. 402(a)(1)-(4); Pet. App. A93. "Other high-
ranking officials may be designated by the President
as Council members or to attend Council meetings."
Pet. App. A93; see 50 U.S.C. 402(a)(7). The Act pro-
vides that "[t]he President of the United States shall
preside over meetings of the Council." 50 U.S.C.
402(a). In addition, "[t]he Council shall have a staff to
be headed by a civilian executive secretary who shall
be appointed by the President," without the advice and
consent of the Senate. 50 U.S.C. 402(c).
The Council's function is
to advise the President with respect to the inte-
gration of domestic, foreign, and military policies
relating to the national security so as to enable
the military services and the other departments
and agencies of the Government to cooperate more
effectively in matters involving national security.
50 U.S.C. 402(a). "[S]ubject to the direction of the
President," the Council is also required
(1) to assess and appraise the objectives, com-
mitments, and risks of the United States in rela-
tion to our actual and potential military power, in
the interest of national security, for the purpose of
making recommendations to the President in con-
nection there with; and
(2) to consider policies on matters of common
interest to the departments and agencies of the
Government concerned with the national security,
and to make recommendations to the President in
connection therewith.
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9
50 U.S.C. 402(b). The Council is also authorized to
perform such other functions as the President may
direct." Ibid.
The NSC historically has treated most of its rec-
ords as presidential records. IV C.A. App. 985. Most
of those records have been transferred to the Presi-
dential Library of the outgoing President upon the
completion of his term in office, either as donated
historical materials of the President or pursuant to
the PRA since it became effective in 1981. See ibid.;
V.C.A. App. 1296 (4), 1312. Each Administration
also has left behind some records for the purpose of
promoting continuity in national security policy. See
IV C.A. App. 985. Those records, previously described
as NSC "institutional" files (ibid.; see V.C.A. App.
1381 (No. 94)), were disposed of in accordance with the
FRA. IV C.A. App. 985; V C.A. App. 1296 (4). Since
1975, the Council's practice has been to search those
institutional files in response to FOIA requests. IV
C.A. App. 985.
3. Prior Proceedings. a, On January 19, 1989-the
last day of the second Reagan Administration-peti-
tioners filed a FOIA request for EOP and NSC rec-
ords generated on the electronic mail system since
its installation in 1985. See Armstrong I, 924 F.2d at
286. Petitioners also filed suit in federal district
court, seeking a declaration that many of the elec-
tronic documents were federal or presidential rec-
ords, and an injunction against their unlawful de-
struction. See id. at 286-287. The government agreed
to maintain all Reagan-era information on backup
tapes pending the disposition of the suit. Id. at 287.
The district court denied the government's motion
to dismiss and for summary judgment. Armstrong
v. Bush, 721 F. Supp. 343 (D.D.C. 1989). The court
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10
agreed with the government that neither the FRA
nor the PRA provided a private right of action. Id. at
348-349. The court held, however, that the imple-
mentation of the two statutes by the President and
subordinate executive branch officials was subject to
judicial review under the Administrative Procedure
Act (APA), 5 U.S.C. 701 et seq. 721 F. Supp. at 349-
350. The court subsequently certified its order for
interlocutory appeal pursuant to 28 U.S.C. 1292(b).
See Armstrong I,924 F.2d at 284.
b. The court of appeals affirmed in part, reversed
in part, and remanded. Armstrong I. The court first
held that the President's implementation of the PRA
was not reviewable, both because the President is not
an "agency" within the meaning of the APA, 2 and
because the PRA impliedly precludes judicial review.
924 F.2d at 288-291. The court held, however, that
petitioners' claims under the FRA were judicially
cognizable under the APA. Id. at 291-294, 297. In the
view of the court of appeals, "neither the statutory
scheme nor the legislative history evinces a con-
gressional intent to preclude judicial review of the
adequacy of the NSC's recordkeeping guidelines and
directives." Id. at 292. Because the court of appeals
viewed the then-existing record as "inadequate to
determine the reasonableness of the guidelines," the
court remanded for further proceedings. Id. at 296.
c. On remand, the district court held that the EOP
recordkeeping guidance, which directed EOP per-
sonnel to print out electronic mail messages that
___________________(footnotes)
2 Subsequent to the court of appeals' decision in Armstrong
I, this Court agreed that the President is not an "agency"
within the meaning of the APA. Franklin v. Massachusetts,
505 U.S. 788, 796 (1992).
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11
were appropriate for preservation, was arbitrary and
capricious because the printed copies did not capture
all of the information associated with the messages
that the district court deemed pertinent. Armstrong
v. Executive Office of the President, 810 F. Supp. 335,
341-342 (D.D.C. 1993). However, the court rejected
petitioners' contention that "the NSC's record keep-
ing guidance is contrary to law because it instructs
the staff to save certain material as presidential
records when, in fact, they are federal records." Id. at
347. The court construed the language of the PRA,
and the court of appeals' opinion in Armstrong I, as
"demonstrat[ing] that the NSC is entitled to segre-
gate presidential an d federal records." Ibid. The
district court declined to review the NSC's record-
keeping guidance with respect to presidential rec-
ords, construing the decision in Armstrong I to hold
that, insofar as the NSC created and maintained
presidential records, review was precluded. Id. at 347-
348.
d. The court of appeals affirmed in part and re-
versed and remanded in part. Armstrong II. The
court affirmed the district court's holding that the
EOP and NSC recordkeeping guidelines were incon-
sistent with the FRA. 1 F.3d at 1282-1287. The court
rejected the government's contention that preserva-
tion of paper records of electronic mail messages was
sufficient to comply with the Act. The court reasoned
that, "since there are often fundamental and mean-
ingful differences in content between the paper and
electronic versions of these documents, the electronic
versions do not lose their status as records and must
be managed and preserved in accordance with the
FRA." Id. at 1287.
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12
The court also considered petitioners' contention
that the EOP recordkeeping guidelines "improperly
instruct NSC * * * staff to treat as presidential
records materials that are, in fact, agency records
subject to the FRA." 1 F.3d at 1290. The court held
that those guidelines were subject to judicial review.
Id. at 1290-1294. 3 The court concluded, however, that
it could not adequately assess the guidelines on the
existing record. Id. at 1296. The court noted in that
regard that "[t]he NSC appears to have routinely
conceded its status as an `agency' subject to the FOIA
in litigation regarding specific FOIA requests," but
that " the issue has never been definitively resolved."
Ibid. The court remanded the ease to the district
court for further proceedings.
e. After the court of appeals' decision in Arm-
strong 11, the NSC reexamined its own status.4 The
___________________(footnotes)
3 The court explained that, "although the PRA impliedly
precludes judicial review of the President's decisions con-
cerning the creation, management, and disposal of presidential
records during his term of office, the courts may review
guidelines outlining what is, and what is not, a `presidential
record' to ensure that materials that are not subject to the
PRA are not treated as presidential records." 1 F.3d at 1294
(citation omitted).
4 The Department of Justice's Office of Legal Counsel
(OLC) also examined the issue and concluded that the NSC is
not an "agency" subject to the FOIA. See Memorandum for
Alan J. Kreczko, Special Assistant to the President and Legal
Adviser, National Security Council, Re Status of NSC as an
"Agency" under FOIA (OLC Sept. 20, 1993). A prior OLC
opinion that had reached the opposite conclusion was with-
drawn. See id. at 8 (withdrawing Memorandum of John M.
Harmon, Assistant Attorney General, Office of Legal Counsel,
to Robert J. Lipshutz, Counsel for the President, 2 Op. O.L.C.
197 (1978)). A still earlier OLC opinion had concluded that the
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13
Council's ultimate conclusion was that, "[t]aking into
account the historical and current functions and
purposes of the NSC, the NSC is an entity within the
Executive Office of the President that exists solely
to advise and assist the President in the discharge of
his constitutionally based responsibilities over the
national security affairs of the United States." Pet.
App. A94. The NSC concluded on that basis that it
was not an "agency" within the meaning of the
relevant statutes. Ibid. The President instructed
the NSC, however, to institute a voluntary disclosure
policy for appropriate NSC records. Id. at A89-A90.
f. On remand from the court of appeals' decision in
Armstrong 11, the district court rejected the gov-
ernment's argument and held that the NSC is an
"agency" subject to the FRA and the FOIA. Pet. App.
A52-A88. The court determined that in several
respects the Council exercises authority to act inde-
pendently of the President. Id. at A72-A76. The court
therefore concluded that, "to the extent the NSC's
current guidelines allow all of its records to be
classified as `Presidential' records, the guidelines are
contrary to law." Id. at A85.
g. The court of appeals reversed. Pet. App. A1-A51
(Armstrong III). The court concluded that "neither
the statutory Council nor the NSC staff performs
significant non-advisory functions," id. at A7, and
that the Council therefore is not an "agency" subject
to the requirements of the FRA and the FOIA.
___________________(footnotes)
NSC was not a FOIA agency. See Memorandum of Roger C.
Cramton, Assistant Attorney General, Office of Legal Counsel,
to John W. Dean, 111, Counsel to the President, at 16-18 (OLC
Jan. 30, 1973) (IV C.A. App. 1003-1005).
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14
The court of appeals acknowledged that " the NSC
has a structure sufficiently self-contained that the
entity could exercise substantial independent author-
ity." Pet. App. All. The court concluded, however,
that the Council does not in fact exercise such
authority. The court emphasized the President's
status as chair of the Council, and the National
Security Advisor's control over NSC staff, as factors
suggesting that the NSC lacks substantial indepen-
dent authority. Id. at A12. The court examined the
statutory provisions defining the NSC's role and
concluded that Congress had not authorized the
Council to perform any non-advisory function, Ibid.
The court specifically rejected petitioners' conten-
tion that the National Security Act of 1947 places
NSC staff, as opposed to the Council headed by the
President, in direct control of the Central Intelli-
gence Agency. Id. at A12-A13.
The court of appeals then addressed petitioners'
contention that various Presidents, during the 40
years since the NSC'S creation, had delegated sub-
stantial independent authority to the Council. See
Pet. App. A14. The court examined each of the areas
in question. See id, at A14-A21. The court deter-
mined that
___________________(footnotes)
[i]nsofar as the staff has been delegated authority
to make policy recommendations for approval by
the President, his NSA, or the statutory Council,
the staff's functions are, of course, quintessen-
tially advisory. Likewise, to the extent that the
NSC assists the President in coordinating the
activities of the various agencies with national
security responsibilities, it exercises no authority
of its own.
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15
Id. at A14. The court concluded that "[u]nder none of
these [delegations] * * * does the NSC appear to
exercise any significant non-advisory function." Id.
at A21. The court also held that the NSC's prior con-
duct in maintaining institutional records separate
from presidential records, and in making some of
the institutional records subject to public access re-
quests, was not dispositive of the Council's status as
an "agency." Id. at A23.
Judge Tatel dissented. Pet. App. A25-A51. In his
view, "the record indicates that responsibilities dele-
gated to the NSC are in fact carried out without the
personal involvement of the President." Id. at A28.
ARGUMENT
The decision of the court of appeals is correct and
does not conflict with any decision of this Court or of
any other court of appeals. This case involves the
application of established legal principles to a single
component within the Executive Office of the Presi-
dent (EOP). The court of appeals emphasized the
unique structure of the NSC as the only unit in the
EOP that includes the President himself. The court
also carefully considered the responsibilities of the
NSC and concluded that the Council is not authorized
to perform any significant non-advisory functions.
The court of appeals' decision turns on the distinctive
characteristics of the NSC, and it raises no issue of
general importance warranting this Court's review.
1. Petitioners first contend (Pet. 17-24) that the
court of appeals' decision warrants review because it
has broad implications for other units within the
EOP. That argument rests on a misreading of the
court's opinion.
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16
a. In Soucie v. David, 448 F.2d 1067, 1073 (D.C.
Cir. 1971), the court of appeals stated that "the APA
apparently confers agency status on any administra-
tive unit with substantial independent authority in
the exercise of specific functions." The court in
Soucie considered the status of the Office of Science
and Technology (OST), a unit in the EOP. In con-
cluding that the OST was an agency, the Court stated
that, "[i]f the OST's sole function were to advise and
assist the President, that might be taken as an indica-
tion that the OST is part of the President's staff and
not a separate agency." Id. at 1075.
The OST did more than advise and assist the Presi-
dent, the court held, because it evaluated federal sci-
ence programs-a duty that Congress had imposed on
OST's predecessor, the National Science Foundation.
448 F.2d at 1075. The court emphasized that Con-
gress "was delegating some of its own broad power of
inquiry" in order to improve the information "avail-
able to the legislature" on scientific programs. Ibid.
Both Congress and the Executive Branch "contem-
plated that Congress would retain control over infor-
mation on federal programs accumulated by the OST,
despite any confidential relation between the Direc-
tor of the OST and the President." Ibid. "By virtue
of its independent function of evaluating federal pro-
grams," the court held, "the OST must be regarded as
an agency subject to the APA and the Freedom of
Information Act." Ibid.
The Conference Report accompanying the 1974
amendments to the FOIA endorsed the Soucie analy-
sis and stated that "[t]he term [Executive Office of
the President] is not to be interpreted as including
the President's immediate personal staff or units in
the Executive Office whose sole function is to advise
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17
and assist the President." H.R. Conf. Rep. No. 1380,
93d Cong., 2d Sess. 15 (1974). This Court in Kissinger
v. Reporters Committee for Freedom of the Press, 445
U.S. 136,156 (1980), adopted that approach. The PRA,
moreover, incorporates the Soucie test in the text of
the Act, by defining "Presidential records" to include
materials "created or received by the President, his
immediate staff, or a unit or individual of the Execu-
tive Office of the President whose function is to
advise and assist the President." 44 U.S.C. 2201(2).
b. Petitioners do not challenge the validity of the
Soucie test itself. They contend, however, that the
court of appeals in this case applied that test in such a
manner as to "potentially exempt any EOP unit from
the records laws." Pet. 18. That argument is without
merit.
In determining that the NSC is not an "agency"
under the Soucie analysis, the court of appeals did not
rely on attributes of the Council that are characteris-
tic of EOP units generally. Rather, the court placed
primary emphasis upon the fact that the President
serves on and presides over the Council. See, e.g.,
Pet. App. A12 (noting that "[t]he President chairs the
statutory Council, and his National Security Adviser,
working in close contact with and under the direct
supervision of the President, controls the NSC
staff "); id. at A12-A13 (observing that "the statute
delegates authority not to the institutional NSC but
to the President and the statutory Council headed by
the President"); id. at A20 (noting "the essential
identity between the statutory Council and the
President-an identity distinctive to the NSC and
completely without parallel at the OST"); id. at A21
(noting "the overwhelming fact that the President is
the head of the NSC"). The NSC is unique among
---------------------------------------- Page Break ----------------------------------------
18
EOP components in that the President is identified
by statute as a member and its head. 5 There is con-
sequently no basis for petitioners' suggestion (see
Pet. 21, 23) that the court of appeals' decision casts
doubt upon the statue of EOP units that have pre-
viously been determined to be "agencies." 6
Although the court of appeals placed primary em-
phasis on the President's status as a member and the
head of the Council, the court did not deem that factor
dispositive. The court stated that, in light of the
close proximity of the Council to the President, peti-
tioners "must make a strong showing * *
regarding the" nature of the NSC's delegated author-
ity. Pet. App. A12. It proceeded to examine in an
exhaustive fashion the functions that the Council
___________________(footnotes)
5 Petitioners suggest (Pet. 23) that the Office of Adminis-
tration (OA), a component of the EOP, is also headed by the
President. That suggestion is incorrect. By Executive Order
No. 12,122, 44 Fed. Reg. 11,197 (1979), the President has
effected a broad delegation of authority over the OA to its
Director. That Executive Order states that, "[s]ubject to such
direction or approval as the President may provide or require,
Director shall organize the Office of Administration, con-
tract for supplies and services, and do all other things that the
President, as head of the Office of Administration, might do."
Ibid. The OA's governing regulations state that the OA "con-
sists of specified offices, which do not `include the President.
6 Petitioners thus miss the point in challenging the court of
appeals' analysis on the ground that "[a]ll EOP units have
proximity to the President." Pet. 19. The court of appeals
made clear that the NSC is "proximate" to the President to a
degree unique among EOP components because the President
sits on and heads the Council. The court did not suggest that
the degree of proximity to the President that is characteristic
of EOP units generally is itself a basis for concluding that a
particular entity is not-an "agency."
.---------------------------------------- Page Break ----------------------------------------
19
performs, see id. at A12-A21, and concluded that
petitioners "ha[d] not carried [their] burden of show-
ing that the NSC exercises meaningful non-advisory
authority," id. at A21. 7
Thus, the court of appeals did not base its holding
on any broad categorical rule applicable to the EOP
generally. It focused instead on the distinctive char-
acteristics of the NSC, both with respect to the Coun-
cil's unique proximity to the President and with re-
spect to the narrow parameters of its delegated
authority. The court of appeals' approach in this case
is in accord with its consistent practice of examining
each unit within the EOP and determining, on the
basis of that unit's characteristics, whether it is or is
not an "agency." 8 The court's determination that the
___________________(footnotes)
7 There is no basis for petitioners' statement (Pet. 18) that
the court of appeals "insisted that an EOP entity is an agency
only if it has the authority to act contrary to the President's
wishes." In determining whether the NSC possessed sub-
stantial authority to act "independently of the President: Pet.
App. A20, or "without the consent of the President: id. at
A17, the court of appeals focused on the extent of the Council's
power to select from among alternative courses of action
without the benefit of express presidential direction. The court
observed, for example, that "[t]he question is not only whether
the President sets the goal, but the generality of that goal the
more general the goal the greater the likelihood that the
responsible entity is vested with some element of discretion and
is not just advising or assisting the President." Id. at A20. See
also id. at A9-A10 ("It is not the number of functions delegated
to the NSC, but the degree of the NSC's independence in
discharging them, that matters."). Obviously no EOP entity
has authority to disregard a presidential directive, and the
court of appeals did not suggest that such authority is a
prerequisite to agency status.
8 See Sweetland v. Walters, 60 F.3d 852, 853-855 (D.C. Cir.
1995) (staff of Executive Residence is not an agency); Meyer v.
---------------------------------------- Page Break ----------------------------------------
20
NSC is not an agency can therefore be expected to
have little impact on the status of other EOP units.
2. Petitioners also contend (Pet. 25-28) that the
question whether the NSC is an agency is itself suffi-
ciently important to warrant review by this Court,
independent of any potential impact on other EOP
units. That argument is unpersuasive.
a. The decision of the court of appeals is correct.
As the court of appeals observed, "[t]he President
chairs the statutory Council, and his National Secu-
rity Adviser, working in close contact with and under
the direct supervision of the President, controls the
NSC staff." Pet. App. A12. This Court, emphasizing
its "respect for the separation of powers and the
unique constitutional position of the President," has
held that the President is not an "agency" subject to
the APA. Franklin v. Massachusetts, 505 U.S. 788,
800-801 (1992). The Court has also recognized that
the National Security Advisor is not an "agency" for
purposes of the FOIA. Kissinger, 445 U.S. at 156.
Absent very persuasive evidence "that the Council
exercises substantial independent functions, it would
therefore be anomalous to conclude that the NSC is
___________________(footnotes)
Bush, 981 F.2d 1288, 1294-1298 (D.C. Cir. 1993) (task force on
regulatory relief is not an agency); National Security Archive
v. Archivist, 909 F.2d 541, 545 (D.C. Cir. 1990) (White House
Counsel's Office is not a FOIA agency); Rushforth v. Council of
Economic Advisers, 762-F.2d 1038, 1040-1043 (D.C. Cir. 1985)
(Council of Economic Advisers is not an agency); Pacific Legal
Found. v. Council on Envtl. Quality, 636 F.2d 1259, 1262 (D.C.
Cir. 1980) (Council on Environmental Quality is an agency);
Sierra Club v. Andrus, 581 F.2d 895, 901-902 (D.C. Cir. 1978)
(Office of Management and Budget is an agency), rev'd on
other grounds, 442 U.S. 347 (1979); Soucie, supra (Office of
Science and Technology an agency).
___________________(footnotes)
21
itself an "agency." See Pet. App. A12 ("The intimate
organizational and operating relationship between the
President and the NSC is * * * entitled to signifi-
cantly greater weight in evaluating the NSC's argu-
able status as an agency than is the self-contained
structure of the entity.")
___________________(footnotes)
9 Contrary to petitioners' contention (Pet. 25), the court of
appeals' decision in this case is not "inconsistent with this
Court's ruling in Kissinger." The Kissinger opinion includes
the following discussion
The * * * requesters have argued that since some of
the telephone notes made while Kissinger was adviser to
the President may have related to the National Security
Council they may have been National Security Council
records and therefore subject to the [FOIA]. See H.R. Rep.
No. 93-876, p. 8 (1974), Source Book II, p. 128, indicating
that the National Security Council is an executive agency
to which the FOIA applies.
445 U.S. at 156. The passage following the citation to the
House Report (quoted by petitioners, see Pet. 25) is clearly a
description of the House Report, not an expression of the
Court's own conclusion. Because the Court in Kissinger con-
cluded that the materials at issue were not properly character-
ized as NSC records, a determination whether the NSC was in
fact an "agency" was ultimately unnecessary to its resolution of
the case. See 445 U.S. at 156.
Nor is the House Report itself persuasive authority with
respect to the NSC's status. That Report stated:
The term "establishment in the Executive Office of the
President," as used in this amendment, means such func-
tional entities as the Office of Telecommunications Policy,
the Office of Management and Budget, the Council of Eco-
nomic Advisers, the National Security Council, the Federal
Property Council, and other similar establishments which
have been or may in the future be created by Congress
through statute or by Executive order.
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22
Plainly aware of separation of powers concerns,
Congress did not confer any independent authority
upon the Council. Under 50 U.S.C. 402, the NSC's
functions are (i) to advise the President with respect
to the integration of domestic, foreign, and military
policies (ii) to coordinate the policies and functions
of the departments and agencies; (iii) to assess and
appraise the objectives, commitments, and risks of
the United States; (iv) to consider policies on matters
of common interest to the national security depart-
ments and agencies; and (v) to make recommenda-
tions. to the President. 50 U.S.C. 402(a), (b) and (d)
(emphasis added). Those functions plainly fall within
the ambit of advising and assisting the President.
The legislative history of the 1947 Act confirms that
the NSC is "an advisory body to the President with
respect to the integration of domestic, foreign, and
military policies." S. Rep. No. 239, 80th Cong., 1st
Sess. 10 (1947). In particular, Congress accepted the
recommendation of President Truman's advisers in
the Bureau of the Budget that the Council not be
"delegated authority which only the President can
___________________(footnotes)
H.R. Rep. No. 876, 93d Cong., 2d Sess. 8 (1974). That cata-
logue reflects no analysis of the NSC's distinctive characteris-
tics, or of the proper application of the "sole function" test.
Indeed, the Council of Economic Advisers (CEA)-one of the
EOP units listed in the House Report-has subsequently been
held not to be a FOIA agency. See Rushforth, 762 F.2d at 1040
(explaining that "[w]here, as here, the specific mention of the
CEA in the House Report was dropped and a specific, judi-
cially formulated test [the Soucie test] was adopted by the
Conference Committee for determining the FOIA status of
such entities, the House Report is entitled to little weight in
this respect"); id. at 1040-1043 (holding that the CEA is not a
FOIA agency).
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23
delegate since in the American constitutional system
only the President is responsible for the ultimate
formulation of foreign and military policy." IV C.A.
App. 1183. 10
In the court of appeals, petitioners' principal argu-
ment was that a series of presidential delegations had
conferred substantial independent authority upon the
NSC. See Pet. App, A13-A14, A21 The court of
appeals examined those delegations at length. Id. at
A14-A21. It correctly determined that
[i]nsofar as the staff has been delegated authority
to make policy recommendations for approval by
the President, his NSA, or the statutory Council,
the staff's functions are, of course, quintessen-
tially advisory. Likewise, to the extent that the
NSC assists the President in coordinating the
activities of the various agencies with national
security responsibilities, it exercises no authority
of its own.
Id. at A14. "Under none of these" delegations, the
court concluded, "does the NSC appear to exercise
any significant non-advisory function." Id. at A21.
Petitioners offer no basis for this Court to revisit
that determination.
___________________(footnotes)
10 President Truman subsequently stated: "Even when the
president sits as chairman in a meeting of the National Secu-
rity Council and indicates agreement, nothing is final until the
Council formally submits a document to the President. The
document states that the Council met and recommended such-
and-such an action, `which met with your approval.' When
the president signs this document, the recommendation then
becomes a part of the policy of the government." 2 Harry S.
Truman, Memories: Years of Trial and Hope 59-60 (1956).
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24
b. Suits under the FOIA may be brought "in the
district in which the complainant resides, or has his
principal place of business, or in which the agency
records are situated, or in the District of Columbia."
5 U.S.C. 552(a)(4)(B). Because the question presented
in this case may arise in the context of the Council's
withholding of record requested under the FOIA,
there remains the possibility of an eventual circuit
conflict if a FOIA case is brought in another circuit
and the court of appeals for that circuit declines to
follow the D.C. Circuit's ruling in this case. In these
circumstances, there is no overriding exigency that
would justify this Court's review in the absence of a
conflict in authority: 11
c. Petitioners greatly overstate the practical im-
plications of the court of appeals' ruling. Contrary to
petitioners' contention, the court's decision does not
"exempt[] the NSC from the records preservation and
disclosure laws." Pet. 27. The Council remains sub-
ject to the requirements of the PRA, including the
provisions mandating eventual release to the public of
___________________(footnotes)
11 Petitioners arguee that, [i]n the past, this Court, recog-
nizing the District of Columbia Circuit's preeminent role in
administrative law, has reviewed the Circuit's important deci-
sions on FOIA issues despite the absence of a conflict." Pet. 24
(citing United States Dep't of Justice v. Tax Analysts, 492
U.S. 136 (1989); Kissinger, supra). In both of those cases,
however, the D.C. Circuit ordered the production of records
requested under the FOI.A. See Tax Analysts, 492 U.S. at 141;
Kissinger, 445 U.S. at 145-146. Because suits under the FOIA
may always be brought in the District of Columbia, see 5 U.S.C.
552(a)(4)(B), a D.C. Circuit decision favorable to the request
will have the practical effect of establishing a nationwide rule.
The court of appeals' decision in this case, by contrast, will not
preclude private plaintiffs from raising the issue presented in
other courts of appeals.
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25
presidential records following the completion of the
President's service in office.* Consistent with sepa-
ration of powers principles, Congress, in enacting the
PRA, sought "to minimize outside interference with
the day-to-day operations of the President and his
closest advisors and to ensure executive branch con-
trol over presidential records during the President's
term in office." Armstrong I, 924 F.2d at 290. But the
court's determination that the NSC is not an
"agency"does not mean that the Council's disposition
of its records is legally unconstrained. Rather, the
court's decision simply means that the preservation
and disposition of NSC records will be governed by
the statutory regime specifically designed for govern-
mental units whose function is to "advise and assist
the President." 44 U.S.C. 2201(2). 13
___________________(footnotes)
12 Indeed, even prior to the court of appeals' decision, the
bulk of the NSC's records were treated as presidential records
subject to the PPA, rather than agency records subject to the
FRA. See page 9, The decision below therefore does
not work a significant change in the way in which NSC records
generally have been handled as a practical matter.
13 Contrary to petitioners' contentions (Pet. 16, 26), there is
no legitimate issue of destruction of records in this case. The
NSC has always preserved its records, as the multitude of
documents in the presidential libraries and the NSC's institu-
tional files attest. The original dispute in this case concerned
the treatment of electronic mail by units in the EOP-
specifically whether the instruction to print messages that
contained record information complied with the records laws.
The use of electronic communications was then new to the
government, and the instruction was (and remains) reasonable,
at a time when most government records are maintained in
paper form. In light of the court of appeals' ruling in Arm-
strong II, the Archivist has issued more comprehensive guid-
ance to all agencies concerning how electronic mail should be
handled for records preservation and disposition purposes. See
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26
3. Finally, we believe (contrary to the court. of
appeals' holding in Armstrong I) that the APA does
not provide for judicial review of a claim that a federal
agency' s recordkeeping practices are inconsistent
with the FRA. That alternative ground for affir-
mance of the court of appeals' rejection of petitioners'
claims under the FRA provides an additional reason
for this Court to deny review.
a. Petitioners may-not invoke the APA's judicial
review provisions because they do not fall within the
"zone of interests" protected by the FRA. To obtain
APA review of administrative action, a plaintiff must
show that "the injury he complains of * * * falls
within the `zone of interests' sought to be protected
by the statutory provision whose violation forms the
legal basis for his complaint." Lujan v. National
Wildlife Fed'n 497 U.S. 871, 883 (1990); see Bennett
v. Spear, No. 95-813 (.Mar. 19, 1997), slip op. 20.
Congress enacted the FRA's records management
provisions not to benefit private parties, but to en-
hance the efficiency of the federal government. The
FRA is a carefully crafted scheme that seeks "to
ensure that a balance is struck between developing
efficient and effective records management, and the
substantive need for Federal records." S. Rep. No.
1326, 94th Cong., 2d Sess. 2 (1976). It reflects Con-
gress's recognition that "[t]he measure of effective
records management should be its usefulness to the
executives who are responsible for accomplishing the
substantive purposes of the organization." S. Rep.
___________________(footnotes)
36 C.F.R. 1234.24, as amended by 60 Fed. Reg. 44,634, 44,641
(1995). The record keeping guidance issued by the NSC and
other EOP entities in 1994 (see 877 F. Supp. at 715) is consis-
tent with the Archivist's Guidance.
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27
No. 2140, 81st Cong., 2d Sess. 4 (1950). As this Court
observed in Kissinger, the FRA was designed "not to
benefit private parties, but solely to benefit the
agencies themselves and the Federal Government as a
whole. 445 U.S. at 149. 14
b. Review under the APA is also unavailable be-
cause a legislative intent to preclude judicial review
is "fairly discernible in the statutory scheme." Block
v. Community Nutrition Inst., 467 U.S. 340, 351
(1984); see 5 U.S.C. 701(a)(1). The FRA provides for
judicial enforcement only through actions brought by
the Attorney General to prevent or redress the "un-
lawful removal, defacing, alteration, or destruction of
records." 44 U.S.C. 2905(a), 3106. Alleged violations
of records creation and management duties, by con-
trast, are subject to the Archivist's limited authority
to "make recommendations" for the correction of vio-
___________________(footnotes)
14 Relying upon its previous decision in American Friends
Service Committee v. Webster, 720 F.2d 29, 53 (D.C. Cir.
1983), the court of appeals in Armstrong I held that research-
ers and historians who make extensive use of government
documents fall within the zone of interests of the FRA, there-
by enabling them to challenge agency guidelines and direc-
tives defining what, constitutes a "record." 924 F.2d at
288. That holding is incorrect. First, the court in American
Friends improperly second-guessed this Court's holding in
Kissinger that Congress designed the FRA solely to benefit the
government. See 720 F.2d at 53. In addition, the American
Friends court relied heavily upon a provision in the FRA re-
quiring an agency to make and preserve records "designed to
furnish the information necessary to protect the legal and
financial rights of * * * persons directly affected by the
agency's activities." 44 U.S.C. 3101; see 720 F.2d at 54. That
Section has no application here, since petitioners have not
alleged that they are "directly affected" by the NSC's
activities.
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28
lations, and to "submit a written report of the matter
to the President and the Congress." 44 U.S.C.
2115(b).
"[T]he presumption favoring judicial review of ad-
ministrative action may be overcome by inferences of
intent drawn from the statutory scheme as a whole."
Community Nutrition Inst., 467 U.S. at 349. Consid-
eration of the FRA's structure and history makes
clear that Congress eschewed private lawsuits and
instead "opted in favor of a system of administrative
standards and enforcement." Kissinger, 445 U.S. at
149. Indeed, when faced with complaints that the
administrative enforcement scheme was ineffective,
Congress responded not by allowing for private law-
suits, but by strengthening the administrative pro-
cess to allow the Archivist independently to initiate
an action through the Attorney General. See H.R.
Conf. Rep. No. 1124, 98th Cong., 2d Sess. 28 (1984).
Allowing direct judicial intrusion into the records
management process would significantly alter the
scheme created by Congress, create undue delay, and
disrupt agency functioning.
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29
CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted.
WALTER DELLINGER
Acting Solicitor General
FRANK W. HUNGER
Assistant Attorney General
LEONARD SCHAITMAN
FREDDI LIPSTEIN
MATTHEW M. COLLETTE
Attorneys
APRIL 1997